Employment Case Law Update: Flower and others v East of England Ambulance Trust
There has been an abundance of case law on how employers should calculate pay during annual leave and the result in Flower and others v East of England Ambulance Trust has added to this. Ambulance staff are often shift workers taking turns to be on duty.
For shift workers, holiday pay is usually calculated by working out the average number of hours worked in the previous 12 weeks at their average hourly rate. The issue in this case was whether ambulance workers’ holiday pay should have included overtime for ‘shift overruns’. Workers at East of England Ambulance Trust brought claims for unlawful deductions from wages in relation to how the trust calculated their holiday pay.
The ambulance workers claimed that their paid annual leave should have included, a) overtime that is required when a shift overruns (i.e. if their shift ends during an emergency) and b) voluntary overtime that the workers can choose to do when it is offered (i.e. additional shifts planned in advance).
The Employment Tribunal held that the trust had to include non-guaranteed overtime for shift overruns in the workers’ holiday pay. It was not an option for the workers to leave at the end of the shift if they were in the middle of an emergency call. Therefore as it was an essential requirement of their role, overtime pay for those shift overruns have to be included in holiday pay.
The trust’s witnesses at the tribunal openly acknowledged that it was not an option for the claimants to leave their job at the end of the shift if they were in the middle of an emergency call, whether that was on the road to an accident or in a call centre. The tribunal did conclude that it was part of the claimant’s contractual obligations.
The tribunal did however draw a distinction between the two types of overtime, stating that the second type of overtime was purely voluntary and therefore there was no obligation on the workers’ to perform this type of overtime. The tribunal could have found that the voluntary overtime should be included but it didn’t because there was no evidence of a pattern in voluntary overtime.
The tribunal said that there had been unauthorised deductions from wages of those claimants who, in the three months prior to any period of leave, undertook such non-guaranteed overtime. In this case the tribunal left it to the parties to agree the remedy.
The message to employers from this case is that they should be wary of the types of overtime employees are undertaking and whether this should be taken into consideration when calculating holiday pay. This case shows that generally if overtime is purely voluntary and there is no obligation on the employee to undertake it, then employers may not need to include this in their holiday pay calculations.
This is for information purposes only and is no substitute for, and should not be interepreted as, legal advice.